Breach of fiduciary duty, equitable wrongs and proprietary remedies: implications for commercial agents
AbstractLord Herschell once wrote that ‘it is an inflexible rule of a Court of Equity that a person in a fiduciary position…is not, unless otherwise expressly provided, entitled to make a profit; he is not allowed to put himself in a position where his interest and duty conflict. It does not appear to me that this rule is, as has been said, founded upon principles of morality. I regard it rather as based on the consideration that, human nature being what it is, there is danger, in such circumstances, of the person holding a fiduciary position being swayed by interest rather than by duty, and thus prejudicing those whom he was bound to protect.’ The purpose of this article is to explore exactly how inflexible this rule is in the context of commercial parties who stand in a fiduciary relationship to others. In particular two areas are examined, firstly; commercial fiduciaries who have received a secret bribe or some other profit in the course of their employment. Secondly; commercial parties who, although not having assumed fiduciary duties to a particular commercial principal, have nevertheless assisted in a breach of fiduciary duty by some other person and in doing so have made a profit. In both cases, can the person against who the breach had been committed claim a proprietary right to the profits in the hands of the wrongful fiduciary?
CitationPanesar, S. (2016) 'Breach of fiduciary duty, equitable wrongs and proprietary remedies: implications for commercial agents', International Company and Commercial Law Review,
PublisherSweet and Maxwell
JournalInternational Company and Commercial Law Review
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- Creative Commons
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